Alternative Engineering Pty Ltd
[2023] FWCA 948
•30 MARCH 2023
| [2023] FWCA 948 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.222—Enterprise agreement
Alternative Engineering Pty Ltd
(AG2023/737)
ALTERNATIVE PLASTICS PTY LTD AGREEMENT 2005
| Building, metal and civil construction industries | |
| DEPUTY PRESIDENT COLMAN | MELBOURNE, 30 MARCH 2023 |
Application to terminate an enterprise agreement
This decision concerns an application made by Alternative Engineering Pty Ltd (applicant), formerly known as Alternative Plastics Pty Ltd, to terminate the Alternative Plastics Pty Ltd Agreement 2005 (Agreement). The application was made under s 222 of the Fair Work Act 2009 (Act), following a vote of employees that approved the termination.
The Agreement is a single enterprise agreement. Its nominal expiry date was 11 July 2008. No unions are covered by the Agreement.
The relevant provisions of the Act are as follows:
“222 Application for the FWC’s approval of a termination of an enterprise agreement
Application for approval
(1) If a termination of an enterprise agreement has been agreed to, a person covered by the agreement must apply to the FWC for approval of the termination.
Material to accompany the application
(2) The application must be accompanied by any declarations that are required by the procedural rules to accompany the application.
When the application must be made
(3) The application must be made:
(a) within 14 days after the termination is agreed to; or
(b) if in all the circumstances the FWC considers it fair to extend that period—within such further period as the FWC allows.
223 When the FWC must approve a termination of an enterprise agreement
If an application for the approval of a termination of an enterprise agreement is made under section 222, the FWC must approve the termination if:
(a) the FWC is satisfied that each employer covered by the agreement complied with subsection 220(2) (which deals with giving employees a reasonable opportunity to decide etc.) in relation to the agreement; and
(b) the FWC is satisfied that the termination was agreed to in accordance with whichever of subsection 221(1) or (2) applies (those subsections deal with agreement to the termination of different kinds of enterprise agreements by employee vote); and
(c) the FWC is satisfied that there are no other reasonable grounds for believing that the employees have not agreed to the termination; and
(d) the FWC considers that it is appropriate to approve the termination taking into account the views of the employee organisation or employee organisations (if any) covered by the agreement.”
Based on the information before the Commission, including the declaration made on 17 March 2022 by Ms Gina Lutz, the applicant’s human resources adviser, I am satisfied that the requirements of s 223 have been met. I am satisfied that the applicant complied with ss 220(1) and (2) by notifying employees of the voting arrangements and giving employees a reasonable opportunity to decide whether they wanted to approve the termination. I am satisfied that the termination was agreed to in accordance with s 221(1), as 7 of the 8 employees voted to approve the termination. There are no reasonable grounds for believing that the employees have not agreed to the termination. Taking into account all of the circumstances, I consider that it is appropriate to terminate the Agreement, and I do so.
The day specified for the commencement of operation of the termination will, as requested by the applicant, be the date of this decision (see s 224).
DEPUTY PRESIDENT
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